5 towns oppose GE dump site in the Berkshires

File brief in support of EPA order to ship PCB-laden soil to licensed facility out of state

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PITTSFIELD — Five Berkshire County towns and an array of organizations have joined the government in the legal battle to prevent General Electric from dumping contaminated soil in a local landfill.

In a "friend of the court" brief, the communities backed the Environmental Protection Agency's defense of its order calling for GE to clean up the the Housatonic River from southeast Pittsfield downstream. GE is fighting the EPA over major aspects of the agency's Rest of River cleanup order.

A three-judge panel at the Environmental Appeals Board in Washington, considered an independent arm of the EPA, is reviewing the case with a hearing set for June 8.

The EPA has ordered the company to spend $613 million over 13 years to dredge, excavate and remove PCB-laden soil and sediment from hot spots, primarily in southeast Pittsfield. Lenox and Lee, and ship the toxins to a federally licensed, out-of-state facility.

State regulations bar the disposal of PCBs into landfills since Massachusetts has no federally licensed disposal sites.

The company argues that it would be safe and cost-effective to truck the contaminated material to a landfill near Woods Pond on the Lee-Lenox border, or to sites off Forest Street in Lee and near Rising Pond in the Great Barrington village of Housatonic. GE says it could save anywhere from $160 million to $245 million.

The potential site at Lane Construction Co. off Woods Pond is 1,300 feet away from the village of Lenox Dale, the Berkshire Regional Planning Commission pointed out in the brief.

In its filing to the Environmental Appeals Board, GE contends that the EPA cannot impose off-site disposal of toxic PCB waste as there is "no environmental benefit." The company asserts that there are "adverse environmental impacts associated with the out-of-state transport and disposal of sediment and soil. Safe, cost-effective local options exist."

The friend of the court brief was filed by the Housatonic Rest of River Municipal Committee, representing Lenox, Lee, Stockbridge, Great Barrington and Sheffield. Committee partners include the Berkshire Regional Planning Commission, the Berkshire County League of Sportsmen, the Pittsfield-based Berkshire Environmental Action Team, the Berkshire Natural Resources Council, the Housatonic Valley Association and the Massachusetts Audubon Society.

The document backs the EPA requirement that GE dispose of dredged PCB-contaminated material in an existing off-site licensed hazardous waste facility. The agency's directive is part of the EPA permit issued last October detailing what the company must do to remove the toxins.

In response, GE filed a 127-page document on March 27 emphasizing its opposition to many EPA requirements, reserving its most intense criticism for off-site PCB disposal.

"We're hearing a very broad-based, unified voice against waste disposal in Berkshire County," said Lauren Gaherty, senior planner of the Regional Planning Commission. "We felt it would be great to have the other organizations join the [friend of the court] brief."

The commission provides technical help to the five-town municipal committee, coordinating the pooling of funds for legal services.

The legal work is being handled by the Pawa Law Group based in Newton, a Boston suburb. The litigation firm is well-known nationally as a successful advocate for communities on environmental issues.

"The landfill issue is the focal point of the Rest of River Municipal Committee," Gaherty stressed. "There's absolutely clear unity on this."

Although Pittsfield declined to renew its agreement with the Rest of River Municipal Committee earlier this year, city Solicitor Richard Dohoney filed a friend of the court brief last month stating that the Rest of River cleanup "will have a great impact on the city" since about 25 percent of contaminated sediment to be removed lies in the riverbed south of Fred Garner Park.

"The city will suffer negative socioeconomic impacts," he wrote, since the removal will require access and easements over city streets and property.

Dohoney's brief calls for active involvement and engagement by the city on the cleanup plan and its impact on residents and businesses.

As Gaherty put it, "GE is absolutely alone in wanting a local landfill, as far as we know."

"As noted in the committee's brief, the cost difference between local and off-site disposal is only slightly more than the $119 million that GE paid its top five executives in 2015 alone," she stated.

The Woods Pond area has an extra layer of protection, Gaherty noted, since it's within the state-designated Upper Housatonic River Area of Critical Environmental Concern.

The area "outright prohibits disposal of PCBs specifically at Woods Pond," Gaherty told The Eagle. The other two potential sites in Lee and Great Barrington favored by GE are outside the area.

Gaherty asserted that when the company spent close to $2 billion to remove PCB contamination from the upper Hudson River, it also sought a local landfill instead of an out-of-state licensed site, as the EPA required.

"GE fought the EPA every step of the way and the EPA prevailed," Gaherty said.

The company released the probable cancer-causing toxins into the Housatonic from its Pittsfield electric transformer plant from the 1930s until 1977, when the U.S. government banned the use of the chemicals.

"The company's cost-savings argument rings hollow," Gaherty contended.

She also concurred with the view that if the Environmental Appeals Board's three-judge administrative panel rules against GE, the company will take the case to the U.S. First Circuit Court of Appeals in Boston.

Reach correspondent Clarence Fanto at cfanto@yahoo.com or 413-637-2551.

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